Carey v. Saffold, 536 U.S. 214, 18 (2002)

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Cite as: 536 U. S. 214 (2002)

Kennedy, J., dissenting

Instead respondent filed a new application, a petition for a writ of habeas corpus, invoking the original jurisdiction of the California Supreme Court. See Cal. Const., Art. VI, 10 (Supp. 2001). Under California law, the original petition began a new proceeding that had no proximate connection to the proceedings in the California Court of Appeal. See People v. Romero, 8 Cal. 4th 728, 737, 883 P. 2d 388, 391 (1994). The California Supreme Court had no power to grant the previous petition, and it did not even have the power to vacate the judgment of the lower state court. See In re Michael E., 15 Cal. 3d 183, 192-193, n. 15, 538 P. 2d 231, 237, n. 15 (1975). There is no sense in which, before or after the filing of a petition for an original writ, an application remained pending below.

Even if California recognized an original writ as an equivalent procedure to an appeal for purposes of state law, the two procedures would differ with respect to the federal statutory question in this case. When a prisoner files an appeal, the original application remains pending in the lower court, but when a prisoner files an original writ, there is no application pending in any lower court. As it turns out, however, California law does not regard an appeal and an original writ as equivalents. California recognizes that a prisoner may obtain relief through either procedure, but the California Supreme Court has said an appeal is preferred. In re Reed, supra, at 918-919, and n. 2, 663 P. 2d, at 217, n. 2. At the same time, a prisoner may use an original writ in circumstances where an appeal is not available. Although California encourages prisoners to exhaust claims in the lower courts, the claims within an original petition need not be the same as those presented earlier. E. g., In re Black, 66 Cal. 2d 881, 428 P. 2d 293 (1967); Cal. App. Rule of Court 56(a)(1) (2002) (directing prisoners to explain why the exhaustion rule should not apply). Indeed, the California Supreme Court may grant relief even if the prisoner has not filed any petition in the lower courts. E. g., In re Moss, 175 Cal. App.

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